Articles Posted in Divorce

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In every California divorce proceeding, both parties must take a good hard look at their joint and individual finances. This is because, at the outset of the divorce process, both parties are required to provide an exhaustive list of all assets, debts, income and expenses. This aids in the division of property and determination of support. However, sometimes once all the facts are laid out in black and white for the parties, they realize that they have much more debt than they originally thought. If the parties’ financial situation is dire enough, one or both parties may file bankruptcy.

If you are going through a divorce and are considering filing bankruptcy it is important to discuss this decision with both a bankruptcy attorney and a certified family law specialist. Together, these professionals should be able to give you all of the information necessary to make the decision regarding whether to file for bankruptcy or not. If you decide you would like to file for bankruptcy, you should consider the timing of your filing and the effect it will have on your divorce case.

Once a party to a divorce action files bankruptcy, the bankruptcy case operates as a stay to all proceedings regarding the division of community property that is the property of the bankruptcy estate. The stay does not operate to prevent proceedings to collect, modify or enforce child and/or spousal support payments against current income. Further, the divorce proceeding itself is not stayed. However, a dissolution proceeding cannot be completed until all property is divided. If property division is stayed pursuant to an ongoing bankruptcy case, the resolution of the divorce case will likewise be stayed.

If a divorce judgment is entered in violation of a bankruptcy imposed stay of proceedings, the divorce judgment is still valid. However, the divorce judgment will have no legally binding effect on the bankruptcy case. The divorce judgment is effective and binding as between the parties but has no legal effect on the bankruptcy authorities. The bankruptcy court does have the option to deflect jurisdiction to the family court to establish the character or title to property held in the debtor’s estate. Unless and until the bankruptcy court deflects such jurisdiction to the family court, the property of the estate will be controlled by the bankruptcy court. In the context of a post-judgment motion or case where the parties to a family law matter were never married, filing bankruptcy does not stay a request to establish or modify child or spousal support.
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In a typical California divorce case, spousal support is awarded based on the need and ability to pay of the parties. However, if there is a history of domestic violence in a case, the spousal support analysis is not so simple. Embedded within California Family Code and cases is the public policy disfavoring an awarded of spousal support from a victim of domestic violence payable to his or her abuser. In making a decision regarding long term spousal support the court is required to consider all of the factors outlined in Family Code § 4320 including domestic violence. In addition, the family courts can make support and property orders in a proceeding brought under the Domestic Violence Prevention Act.

Family Code § 4320(i) provides that the court shall consider the following circumstances: “Documented evidence of any history of domestic violence, as defined in [Fam. Code §6211], between the parties or perpetrated by either party against either party’s child, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party.” The Family Code also has provisions creating a presumption that a spousal support award should not be made in favor of a person convicted of a crime of domestic violence.Although the law is clear regarding cases where a finding of domestic violence has been made or where one party has been convicted of a crime of domestic violence, what happens if a spousal support hearing is conducted while a domestic violence case is pending? Recently, a California appellate court held that a court may award spousal support in a proceeding brought under the Domestic Violence Prevention Act prior to reaching a conclusion that domestic violence has occurred. Contrary to cases where an alleged domestic violence abuser is requesting support, this recent case addressed the issue of support due to the alleged victim. Domestic violence hearings can get continued out (for months sometimes) for a variety of reasons. The court reasoned that is should not withhold support for an extended period of time just because the domestic violence issues have not been decided.

Domestic violence cases are always emotionally charged and carry significant implications for both parties. It is always important to discuss your domestic violence case with an experienced family law attorney to ensure that your rights are protected.
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In a recent divorce between Black Keys’ singer, Dan Auerbach, and his former wife, Stephanie Gonis, the parties divided an unusual asset – a lock of Bob Dylan’s hair. This is a perfect example of the family law principle that all property must be divided upon dissolution. In the Auerbach-Gonis divorce, the parties owned a variety of typical assets such as real property, vehicles, and cash; however, all property – including valuable locks of hair must be divided at the time of judgment.

In the beginning of each divorce case, the parties are required to disclose and characterize all property either party has an interest in. “Property” is defined in California Civil Code Section 654 as, “the ownership of a thing is the right of one or more persons to possess and use it to the exclusion of others…the thing of which there may be ownership is called property”. Property can be further characterized as “real” property and “personal” property. Generally in dissolution proceedings, real estate (including the marital residence and vacation homes) are the only “real” property divided. All other property is generally “personal” property.Ultimately Gonis was awarded Bob Dylan’s hair pursuant to the Auerbach-Gonis judgment. According to the California Family Code and applicable California case law, the community estate must be divided equally between the parties. The community estate consists of all the community property acquired by the parties from the date of marriage to the date of separation. In some circumstances, although the estate as a whole can be divided equally in terms of the value each party receives, all assets may not be divisible. It is important to note that all property, including the separate property of both spouses, must be disclosed. Separate property is defined all property acquired by either spouse prior to marriage, after separation, or during marriage by gift, bequest, or devise. If property is determined to be the separate property of one spouse, that property will be confirmed to that spouse in the final judgment without offset for its value.

In a case where a community asset cannot simply be divided in half and distributed to the parties, such as a lock of hair, the parties will have two options. First, the parties can agree on the value of the indivisible item and offset the division of other assets to account for one party receiving the asset in full. Second, the parties can agree to sell the indivisible item and split the proceeds equally. If an asset is easily divisible, such as the funds in a bank account, the parties can each take one-half of the asset without the need for a valuation or sale.
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Once a spouse decides that his or her marriage is over, he or she may want to take steps to prepare for divorce before filing the initial paperwork and/or discussing it with his or her spouse. If you are considering your first divorce just the thought of the overall process can be overwhelming and upsetting. In order to enter the process with greater awareness and information, there are a few things that you can do to prepare for divorce.

Consult with an attorney regarding your state’s laws: Each state has specific laws regarding how property will be divided, spousal support, child support, and custody/visitation in the event of a divorce. Many people are unfamiliar with the specific laws of their state and may have misconceptions regarding their rights and options in a divorce. It is important to meet with a certified family law specialist so that you can gather more information about what you can expect in your divorce. Getting an idea of how the process will work and the likely outcomes in your case can ease a great deal of stress and tension.

Become familiar with the different types of child custody: In California there are two types of child custody – legal and physical custody. It is important to understand the differences between these two types of custody and how they relate to each other. Further, there are varying degrees of physical custody and infinite possible custody configurations.

Preventative preparation: One of the biggest jobs for any divorce litigant is helping his or her attorney prepare the mandatory financial disclosure documents. This process can become more difficult if a party no longer has access to the required documents because he or she moved out of the residence, the other spouse took the documents, or the spouse has no direct knowledge of the family finances. Prior to separation, it is advisable to make copies of all financial documents including, but not limited to, bank statements, tax returns, pay stubs, family bills, and title paperwork.

Stay on your best behavior: In preparation for divorce, it is important to refrain from behavior that may reflect badly on you if your matter is heard by a judge. Especially in custody/visitation disputes, poor behavior prior to divorce will reflect on a spouse’s parenting abilities.Begin considering telling the children: If you have decided to get a divorce, it is never too early to begin thinking about and researching possible ways to talk to your children about divorce. It is important to approach this discussion thoughtfully and with great care in order to ensure the child is assured the divorce is not his or her fault.

In any divorce case, emotional preparation can be just as helpful as legal preparation.
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Despite the oppositional nature of family law, many cases are able to proceed through the court system with little to no conflict between the parties. However, for a variety of reasons, some cases are so high conflict that the parties are consumed by their family law matter. This high conflict case structure is particularly common in disputed custody and visitation matters. In addition to the emotional and mental drain a high conflict case has on both parties (and their child), conflict also drains the financial resources of the parties especially if one or both parties are represented by counsel. If you think your custody matter is high conflict, here are a few tips on how to reduce further tension between you and your co-parent.

Communication is Key: Conflict tends to arise out of frequent negative communication between the parties. This communication could be harassing due to its volume or the tone of the parties’ exchange. If one or both of the parties have “unfinished business” with each other after the break down of their romantic relationship they sometimes try to hold onto that former relationship by attempting to “get to” the other parent through an ongoing custody matter. In order to avoid this type of conflict, limit all communication to e-mail (except in the case of an emergency). Restrict the topic of communication only to matters related to the children and keep a friendly tone with your co-parent.

Stick to the Letter of the Law: In a high conflict case, giving or requesting leniency regarding the current custody/visitation order often leads to increased complications. In these cases, it is best to stick to the exact provisions of your custody/visitation order or agreement. Further, when the court makes custody/visitation orders, make every effort to request that the court be as specific as possible. This same rule applies to any negotiated custody orders. For example, ensure the order specifies the date, place, and manner of transfer for all exchanges. It is also important to limit the child’s exposure to potential domestic conflict or violence and ensure the safety of all people involved.Keep the Kids out of It: Although children present a wealth of information about your co-parent, never discuss the custody matter or any other adult issues with children. Not only are such conversations detrimental to the children, but if discovered, could be used against the parent and result in reduced (or even supervised) visitation time. Further, most custody/visitation orders contain direct prohibitions restricting both parents’ communication with the children about the pending case and any other adult matters. Thus, such conversations may be treated as a direct violation of a court order and could result in sanctions imposed against the offending party.
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In San Diego family law cases “four-way” meetings are commonly used to settle divorce cases. A four-way meeting (commonly referred to as “four-way”) in a divorce action is a face-to-face meeting between the two parties and their respective attorneys. Four-ways are notoriously dreaded by family law litigants because the litigants will be required to sit in a room with their spouse and discuss the “tough issues” which have created an impasse to settlement. Family law attorneys also conduct “five-way” meetings and invite a financial expert (or any other type of expert) to weigh in on the discussion. In preparation for an important four-way there are many things a litigant can do to help the process move along smoothly.

Meet with your Attorney Beforehand: Experienced family law attorneys make it a habit to meet with their clients before any four-way. This meeting provides the client with an opportunity to discuss his or her concerns, goals, and fears with the attorney. In turn, the attorney can provide clarification if needed and ensure the client’s interests are protected and validated. The “pre-meeting” is also a good time to discuss communication preferences and for the attorney to find out if the client expects to communicate on behalf of him/herself or would rather take a “back seat” to the conversation.

Focus on your Goals: During a four-way when the litigants are sitting face-to-face, it is often tempting for one or both parties to be critical, accusatory, or sarcastic. These types of comments can often derail otherwise good progress and deter settlement. Try to focus on the “bigger picture” during the four-way and save any pent up feelings of anger and resentment for another day. It is much easier to convince the other side that what you want is best for him or her as well.

Listen with an Open Mind: Generally attorneys decide to hold a four-way because the parties have reached some impasse in negotiations which the attorneys believe can be resolved. If both you are stuck in the mud on your relative positions then neither of you are working toward a mutually beneficial resolution. Further, it is unlikely that if the issue proceeds to court, either of you will get exactly what you are asking for. This is because courts are generally limited to fixed solutions they can provide. A four-way meeting provides the attorneys and clients a chance to consider alternative solutions and avoid the court system altogether. Many issues litigated in family law cases are much too personal and important to just hand over to a stranger to decide. Certainty and peace of mind are often more valuable than the issue the parties are fighting over.
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Until just recently, there were not any California cases on point regarding whether a licensed professional’s book of business (i.e. list of clients) is something of value that should be considered an asset subject to property division during a divorce proceeding. However, the Fourth Appellate District’s recent decision in In re the Marriage of Mark and Rhonda Finby finally shed light on this issue.

In other jurisdictions, courts have held that licensed professionals’ customer lists generally constitute divisible property during a divorce. In the New York case Moll v. Moll, for example, the Court held that clients serviced by a stockbroker constitute a marital asset because the thing of value is the stockbroker’s personal/professional goodwill. Also in the Florida case Reiss v. Reiss, the Court held that clients that were brought to a new securities firm by a stockbroker constitute a marital asset subject to division.

Similar to the holdings in other jurisdictions described above, in the recently published case In re Marriage of Finby the Fourth District California Appellate Court reversed the trial Court’s decision and found that a book of business that a financial advisor developed during the marriage constitutes an asset that has value and is thus subject to division during a divorce proceeding.As background, in In re Marriage of Finby, the Wife worked as a financial advisor and developed a list of clients (who owned over $192 million in investments) during marriage that she referred to as her “book of business”. Wife left her previous employer and went to work for Wells Fargo, who paid her over $2.8 million as a transitional bonus. Although Wife argued that her book of business did not have value because she could not sell it, the Appellate Court found that it was a valuable asset, reasoning that her book of business was essentially consideration for Wife’s transitional bonus. In other words, Wife was granted the option to earn a significant amount of money based on her work during the marriage of acquiring a book of business. The Court further reasoned that Wife’s ability to transfer her book of business by bringing her clients to Wells Fargo is similar to goodwill, like that which is found in the business of other professions (e.g. lawyers and doctors). As a result, the Court found that the community had an interest in a portion of the transitional bonus and remanded it back to the trial court to determine exactly how much of an interest should be apportioned to Husband.
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Kansas is considering a bill which would arguably eliminate “no-fault” divorce throughout the state. Currently in Kansas, “incompatibility” is a ground for divorce similar to California’s “irreconcilable differences”. “Incompatibility” and “irreconcilable differences” are both general catch-all no-fault grounds for divorce. The new Kansas bill would replace “incompatibility” with eight reasons the couple is seeking a divorce.

Keith Esau, a member of the House Judiciary Committee, introduced the new “fault divorce” bill. He supports the intent behind the bill (which was authored by an anonymous legislator) because he says “No-fault divorce gives people an easy out instead of working at it.” Other members of the Judiciary have spoken out about the bill noting that the government may be overreaching by limiting a couple’s decision to end their relationship. In response, the bill’s supporters argue that married couples receive significant benefits from the state and therefore the state should be able to limit people from entering into marriages temporarily, reaping the benefits from the state, and then getting out.

Kansas divorce attorneys argue that the new bill will only complicate and prolong the divorce process. Such an adversarial requirement – choosing from a list of fault-based grounds as a reason for the divorce – can make a family matter extremely contentious. Divorce attorneys in Kansas question whether the new bill would deter many couples from petitioning for divorce. Whether the divorce process is “easy” or “difficult” for the parties will likely not be the deciding factor when determining whether to file for divorce. Further, many couples are unfamiliar with divorce laws and the process and therefore do not take them into consideration before filing for divorce.

At Bickford Blado & Botros, we strive to make the divorce process as smooth as possible for all of our clients. This includes a strong effort to resolve all issues without court intervention. If California were to consider a bill eliminating “no-fault” divorce, our firm would be concerned about the effect such a law would have on children caught up in the divorce process. Our attorneys encourage clients to resolve all custody and visitation disputes amicably outside of court. By eliminating “no-fault” divorce thereby increasing the tension and conflict in divorce cases, litigants may be less likely to resolve custody disputes quickly and cooperatively. Court intervention and contentious custody battles are rarely in the best interest of the children and will likely make the divorce transition more difficult for them.
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Divorce lawyers are notoriously busy bouncing from hearing to hearing while juggling constant client phone calls and e-mails. Family law is one of the most “client intensive” areas of law, meaning the client plays a much larger role in a divorce action than he or she would in other civil matters. Effective and prompt communication is the top factor for clients in determining their satisfaction with their divorce attorneys. Urgent issues can arise on a daily basis in divorces cases if the parties have a dispute over finances, child custody/visitation, or property. Unfortunately, clients generally do not know how responsive their attorneys will be to these issues until an emergency arises.

Family law firms also tend to be much smaller in size in comparison to other civil litigation practices. If a family law firm only has a couple of employees including the lawyer, it may be difficult for the client to get in contact with his or her attorney. With divorce lawyers out of the office frequently for hearings, meetings, depositions, and settlement conferences, office staff is generally left to handle paperwork, client calls, and a multitude of e-mails. Although it is not impossible for small law firms to efficiently communicate with all of their clients in a reasonable manner, many clients are not satisfied with the attention their case receives.

Once a breakdown in communication has occurred between lawyer and client, both parties tend to be angry and frustrated with the situation. Further, switching attorneys or remedying any consequences of inadequate attention to a case could cost the client additional attorney fees and further delay his or her divorce. Considering it is not uncommon for the divorce process to last one to two years, unnecessary delays can be particularly frustrating for clients.

At Bickford Blado & Botros we work as a team to ensure that each client gets the prompt and careful attention he or she deserves. When a client retains our firm to represent him or her in a divorce matter, a lead attorney, supporting attorney and paralegal are all assigned to the case. This means that if the client needs any information at least one team member will likely be available to assist them. Further, if both attorneys assigned to the case happen to be out of the office when an urgent matter arises, any other attorney currently in the office will be available to handle emergencies. The variety of staff assigned to a case also allows the lead attorney to delegate work to attorneys or paralegals with a much lower billing rate thereby reducing the overall cost for the client.
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On March 1, 2014, the San Diego Superior Court began offering a “One Day Divorce” option at the San Diego’s Downtown Family Court. This pilot program provides the option for eligible parties to complete their entire divorce is just one short day. Sounds pretty amazing, right?!

The goal of the program is for parties to walk out of the courthouse with their judgment papers in hand. Parties first meet with a family law expert to go over the terms of their proposed divorce settlement or the process for a default judgment. Then the parties will receive hands on assistance with completing any forms necessary to finalize their divorce. If all of the forms are completed, the parties may appear in court that same day to receive their final judgment.

Offering an extremely fast and affordable resolution to the otherwise typically lengthy divorce process is what the “One Day Divorce” program aims to do. This seems like quite the innovative option. But it inevitably comes with some pitfalls. For starters, those impacted by the new program won’t be as widespread as one would think. Rather, eligible parties are limited only to those who have already filed a petition for divorce or separation in San Diego County at least six months ago, are self-represented, have served the summons and petition on the other party, a proof of service of summons or a response has been filed with the Court, and there are no contested issues. In addition, if either spouse has retirement benefits that were earned during marriage, such benefits must be listed on the petition or response in order to be able to complete the judgment. These limitations narrow down the pool of eligible couples dramatically.

On the other hand, the “One Day Divorce” program doesn’t appear to be as limited as the eligibility requirement for a summary dissolution. Unlike summary dissolutions, the “One Day Divorce” program’s parameters are not limited to couples who have been married less than five years, have no children of the marriage, do not have any interest in real estate, do not have debts over a specified amount, do not have community assets over a specified amount, agree to waive spousal support, etc. This means that cases involving long-term marriages, spousal support, custody, high assets, etc. may take part in the program. However, such cases may be quite complex and perhaps a “one day divorce” approach wouldn’t serve the best interests of the parties. Rather, they might be better off with legal representation to ensure equal bargaining power and knowledge between the parties. Also, the appropriate amount of time and expertise to review all aspects of their divorce might be necessary to ensure that the parties fully understand their situation and have sufficient time to received legal advice before settling.

In any event, the success of the “One Day Divorce” program will heavily depend on its execution. For instance, the “family law expert” that will meet with the parties during the One Day Divorce process poses potential concerns. What will this person’s limitations be? Will he/she act as a mediator or give legal advice? Is he/she a licensed and experienced divorce attorney? If the program’s intent is to solely help parties who have reached agreement on every single aspect of their divorce and either don’t have any further questions or are not able to get legal advice at or during the one day process then perhaps the program will indeed have potential for those truly uncontested cases. But, if the family law expert’s role is to give legal advice then that would likely be another story.
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